LESLIE v SMALLEY [2003] NSWCA 247

New South Wales Court of Appeal

CITATION : LESLIE v SMALLEY [2003] NSWCA 247 HEARING DATE(S) : 20 August 2003 JUDGMENT DATE : 28 November 2003

JUDGMENT OF : Meagher JA at 1; Handley JA at 2 DECISION : Appeal allowed in part.

CATCHWORDS : DAMAGES - non-economic loss - additional cost of accommodation - additional cost of travel - no question of principle. ND CASES CITED : Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Marsland v Andjelic (1993) 31 NSWLR 162 PARTIES : Scott Noel Leslie (Appellant) Samuel Joseph Smalley (by his next friend Elizabeth Mary Smalley) (Respondent) FILE NUMBER(S) : CA 40263/02 COUNSEL : J D Hislop QC/P Gormly (Appellant) P Hennessy SC/P Frame (Respondent) SOLICITORS : Lee & Lyons (Appellant) Heard McEwan (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 8417/00 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40263 of 2002

MEAGHER JA HANDLEY JA

Friday, 28 November 2003 Scott Noel LESLIE v Samuel Joseph SMALLEY (by his next friend Elizabeth SMALLEY) CATCHWORDS DAMAGES – non-economic loss – additional cost of accommodation – additional cost of travel – no question of principle FACTS

The plaintiff who was 19 at the time was seriously injured in a motor vehicle accident in 1997. He recovered damages of $4,139,430 at the trial. On appeal the defendant challenged components of this award including those for non-economic loss, the additional cost of accommodation, and the cost of travel. The appeal as to economic loss and the cost of care failed. The trial judge awarded 100% of a most extreme case for non-economic loss, $85,680 for the additional cost of accommodation, and $122,827 for necessary taxi travel. HELD: (1) The plaintiff's injuries did not constitute a most extreme case and an award based on 85% of a most extreme case was substituted; (2) The plaintiff was entitled to the cost of adding an ensuite bathroom to an existing three bedroom house for use by a live in carer but nothing more for the additional cost of providing for his accommodation as injured and an award of $20,000 would be substituted; (3) The award of $122,827 for the cost of future taxi travel was disallowed in full as it would be reasonable for the plaintiff to purchase a car and use his full-time carer as his chauffer.